K Children), Re

In care proceedings, a court need not adjourn merely because a previously ordered viability assessment is incomplete. It must reassess whether further assessment is required in light of likely delay, subsequent developments and the totality of the evidence. An experienced judge may proceed where the available evidence is sufficient. A child’s cultural and religious heritage must receive proper consideration, but those needs may be balanced against the need for a stable family placement. A section 91(14) order under the Children Act 1989 is not confined to cases involving multiple applications. It may be imposed as a welfare-based filter after unusual and protracted litigation, with its duration left to the trial judge’s discretion.

Proceedings began with an application by the maternal grandmother for a residence order concerning AK. Public law proceedings were later commenced, and the parents opposed a special guardianship order in favour of the grandmother. They sought further assessment and the opportunity to care for AK in the future.

On 14 May 2010, HH Judge Carr QC made a special guardianship order in favour of the grandmother and a section 91(14) order restricting further applications by the parents for two years and four months. The parents appealed, arguing that the parental viability assessment was inadequate, that AK’s cultural and religious needs had been insufficiently addressed, and that the restriction on further applications was wrong in principle or excessive.

Lady Justice Black delivered the judgment, with Lord Justice Thorpe agreeing. The appeal was dismissed.

1. Further assessment. Care cases are not static. Where an assessment ordered for a final hearing is incomplete or unavailable, the court must reconsider whether further assessment is required on the evidence then available. Relevant considerations include the delay caused by further assessment, developments since the assessment was ordered, the totality of the evidence, and whether other evidence covers the same ground.
2. Trial judge’s evaluation. Judge Carr had extensive knowledge of the proceedings and had observed the parents during the nine-day hearing and earlier hearings. She was entitled to conclude that the evidence, including the evidence of the guardian, the psychologist and the social worker, was sufficient to determine that placement with the parents was not viable. The incomplete viability assessment had been given little weight, and the judge’s conclusion did not depend upon it.
3. Cultural and religious needs. The judge properly recognised the importance of AK’s Pakistani and Islamic heritage. She was required to balance those needs with the need to keep AK within her family and secure a stable placement. Given the evidence that the grandmother was the only person able to care for AK, it was within her discretion to make a special guardianship order without commissioning a further assessment devoted to cultural and religious matters.
4. Section 91(14). The guidance in Re M and Re P was not intended to be radically different: the judge was not misled by relying on Re M, [1999] 2 FLR 553, rather than Re P, [1999] 2 FLR 573. A restriction could be justified despite the absence of multiple applications where the litigation was unusual and protracted, the parents’ conduct made their future conduct difficult to trust, and AK’s welfare required a period of calm. The duration of the restriction was a matter for the experienced trial judge’s discretion.

• Court of Appeal (Civil Division): Appeal dismissed.
• Sheffield County Court: On 14 May 2010, HH Judge Carr QC made a special guardianship order in favour of the maternal grandmother and a section 91(14) order restricting further applications by the parents for two years and four months.